With the federal government opting not to use a back-up tactic to justify some deportations, officials and lawyers for a Tunisian national who had been sent out of the country have agreed on a way to let him return and not again face the same fate, based on a conviction in Kansas for hiding a small supply of a drug in his sock. That appeared likely to bring to an end the case of Mellouli v. Lynch, in which the Court had ruled in favor of Moones Mellouli on June 1 of this year.
Mellouli, who became a lawful permanent U.S. resident six years ago, got in trouble for the minor crime, under Kansas law, of possessing drug paraphernalia. In his case, the “paraphernalia” was a sock in which he had put four orange tablets. which had not been identified specifically at the time. He was deported, on the premise that such a crime was a sufficiently close match to a federal crime that he lost his right to remain in the country.
The Supreme Court, however, ruled by a seven-to-two vote that his deportation was illegal, because his Kansas guilty plea involved a state anti-drug law that was not parallel with a federal crime. Mellouli and his lawyers believed that he had won his challenge in that ruling, but he faced a new legal threat after his case returned to the U.S. Court of Appeals for the Eighth Circuit.
Instead of ruling that his case was at an end under the Supreme Court’s ruling, the Eighth Circuit sent his case to the Board of Immigration Appeals for it to consider whether he may yet be excluded from the United States because the pills in his sock had turned out to be Adderall, an illegal drug under federal law. Technically, this was a “circumstance-specific” basis for excluding a specific individual. Ordinarily, deportation for a conviction of a state crime is judged not on the specifics of the facts in a given case, but on a categorical comparison of the terms of state and of federal law. If they are not the same, under the categorical approach, deportation is not allowed based on the state conviction.
Federal officials told the immigration panel that they did not intend to try to keep Mellouli from returning, but they only asked that the pending case there be dismissed “without prejudice.” Mellouli’s lawyers, viewing that as a potential basis for reviving an exclusion order at some point in the future, returned to the Supreme Court and obtained an order delaying the immigration panel review, until Mellouli could file a new appeal to the Justices. That order was issued on August 21.
After that, it now has turned out, the government and Mellouli’s lawyers negotiated a deal. Together, they agreed, they would ask the immigration board to dismiss the case, without the chance of reviving it later. If that brought the case to an end at the board, they agreed, Mellouli would not pursue an appeal on whether he could face exclusion under the back-up theory the Eighth Circuit had suggested. The government promised he could then return to the country, and it would not again try to use the Kansas conviction to exclude him.
What would happen next, if the Supreme Court agrees, is that its August 21 order against the immigration proceeding would be lifted, so that the joint motion to end that review could then be filed and acted upon. Mellouli in the meantime has filed his new appeal, but, under the agreement, he will abandon it if the immigration board goes along with the two sides’ agreement.
In the course of describing this agreement to the Supreme Court, government lawyers said that the Justice Department will no longer seek deportation, in Mellouli’s case or any other, under the “circumstance-specific” alternative approach, but will do so only when it can show that the categorical comparison of state and federal laws shows them to be overlapping. It is unclear how many deportation cases that change in policy will affect.
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